Having read about this issue for a day or so now, I'm quite surprised that no hue and cry has been made about the President setting aside the advice of the Ministry of Home Affairs and granting commutation. Maybe I'm reading too much into it? Or maybe one should not rely on the media to present the facts accurately? The law on this has been settled back in 1980 in Maru Ram v. Union of India [(1981) 1 SCC 107] by a five-judge bench of the Supreme Court. Apologies for the lengthy quote, but His Honour is not renowned for his brevity..
It is not open either to the President or the Governor to take independent decision or direct release or refuse release of any one of their own choice. It is fundamental to the Westminster system that the Cabinet rules and the Queen reigns. Being too deeply rooted as foundational to our system no serious encounter was met from the learned Solicitor General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers save in a narrow area of power. The subject is now beyond controversy, this court having authoritatively laid down the law in Shamsher Singh's case. So, we agree, even without reference to Art, 367 and ss. 3(8)(b) and 3(60)(b) of the General Clauses Act, 1897, that, in the matter of exercise of the powers under Arts. 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment but in accordance with the aid and advice of the ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor vis a vis his Cabinet is no higher than the President save in a narrow area which does not include Art. 161. The Constitutional conclusion is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government.
In short, acts committed by the President under Art. 72 (or by the Governor under Art. 161) must necessarily conform to the stipulations of Art. 74 (or Art. 163), viz. the titular head of the Executive shall act in accordance with the advice received from his Council of Ministers.
There are plenty of recent judgments where this position has been reiterated. For example, this piece of obiter dicta from H. S. Bedi, J. in Jagdish v. State of Madhya Pradesh [(2009) 9 SCC 495 (512)]:
The power of the President and the Governor to grant pardon under Arts. 72 and 161 of the Constitution has to be exercised under on the advice of the Executive Authority.
Or, from Arijit Pasayat, J. in State (Govt. of NCT of Delhi) v. Prem Raj [(2003) 7 SCC 121 (125)]:
The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as, Sections 432, 433 or 433-A of the [Criminal Procedure] Code or by any Prison Rules. But the President or the Governor, as the case may be, must act on the advice of the Council of Ministers.
And finally, P. Sathasivam, CJ. in Shatrughan Chauhan v. Union of India [(2014) 3 SCC 1] provided a detailed overview of the law on the matter of pardons, before noting:
In concise, the power vested in the President under Article 72 and the Governor under Article 161 of the Constitution is a Constitutional duty. As a result, it is neither a matter of grace nor a matter of privilege but is an important constitutional responsibility reposed by the people in the highest authority. The power of pardon is essentially an executive action, which needs to be exercised in the aid of justice and not in defiance of it. Further, it is well settled that the power under Article 72/161 of the Constitution of India is to be exercised on the aid and advice of the Council of Ministers.
Since it is a "constitutional duty", it follows that it needs to be executed within constitutional bounds. This isn't to suggest that President Mukherjee should be impeached per Art. 61 for violation of the Constitution, of course, but the entire concern is - why is TDL the only one talking of this? What am I missing, and exactly how much egg will I be left with on my face?
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